2002 PLP 228 (YLR)

Raja Saeed Akram, A.A.-G. and Sher Zaman Bhatti for the State. Zafar Ali petitioner seeks bail after arrest under section 497 Cr.P.C. in case registered vide F.I.R. No.89, dated 30-3-2001, for offence under sections 337-F(iv), 337-D, P.P.C. at the Police Station Mandra, District Rawalpindi.

2. The incident took place on 30-3-2001 at 8-30 a.m. The F.I.R. was lodged on the statement of Khadim Hussain son of Nazar Hussain. The allegation against the petitioner Zafar Ali is that he while armed with `Chhuri' alongwith two others co-accused namely Tariq and Nadeem, gave a Chhuri blow hitting the complainant on the right side of his back. The petitioner moved the bail after arrest before the Judicial Magistrate, Gujjar Khan, who rejected the same on 23-6-2001 and thereafter the bail, was refused by the learned Additional Sessions Judge, vide his order dated 20-8-2001.

3. The learned counsel for the petitioner contends that from the medical report it is clear that the complainant's injury is `Ghair jaifah'. According to him the `Jaifah' is defined in section 337-C, according to which injury which extends to body cavity of the trank is Jaifah. The learned counsel contends that the injury is `Ghair Jaifah' which is `Mutallahimah' and falls under section 337-E(i)(c), punishable under section 337-F (iii) P.P.C. The learned counsel further argued that the Doctor in his report has observed that on the exploration of the wound it was found to be communicating with pleural space breaching the parietal pleura as Liver and Lungs have not been damaged. The learned counsel has relied on the case reported as Pervaiz Khan v. The State (PLD 1978 Lahore 84) and argued that the case falls Out of section 337-F(i) is Arsh and Tazir secondary punishment thus does not fall under he prohibitory clause of section 497 Cr.P.C. according to the learned counsel since the case does not fall under the prohibitory cause, therefore, grant of bail is a rule arid refusal is an exception. Reliance has been laced on the case reported as Abdul Ghaffar The State PLD 1999 Lahore 277). Conversely, the learned Assistant Avocate General contends that through through and fair investigation the police has come. to the conclusion that co-accused Nadeem was innocent and the injury to the complainant has been inflicted by the present petitioner. Co-accused Mubarik has been ranted bail but the present petitioner does of deserve the concession of bail because he nominated in the F.I.R. and specific injury the complainant on his back has been tributed to the petitioner. He has relied on e case of Dullah Khan v. The State 2001 PCr.LJ 998, to argue that the point of controversy that the injury is of `Jaifah' or hair Jaifah' can be determined by the learned trial Court after the examination of e medical evidence. Further contends that e petitioner is not entitled for the bail, cause his case would fall under exception as both parties were apprehending danger from each other and were bound down under sections 150/151, Cr.P.C.

4. The petitioner has inflicted a Chhuri below by dragging the complainant from the Wagon. The complainant went under major operation and this has been observed by the Doctor that on wound exploration it was found to be communicating with pleural space breaching the parietal pleura. In this case the petitioner-accused has been nominated in the I.R. and after the investigation the police found co-accused Nadeem as innocent and Mubarik was allowed bail as no injury is attribute distinguishable from Mubarik as he has inflicted a Chhuri blow on the- back of the complainant and he has been attributed specific role. No doubt in referred case PLD 1998 Lahore 85, after examination of the Expert witness at the conclusion of trial in appeal this Court held that injury is `Ghair Jaifah' convicted the accused under section 337(F(iii), P.P.C. The case (supra) came for consideration before this Court in 2001 PCr.LJ 998, where this Court refused the bail by observing that, "On- basis of nature and seat of injury, the same has been declared as Jaifah and, therefore, falls within prohibitory clause of section 497 Cr.P.C. It is for trial Court to determine, after recording evidence, whether body cavity was of that part of body wherein vital organs are located or was on some other part -Held: To attract provision of section 337-D P.P.C. it is not necessary that vital organs like heart, lungs or liver are caused damage and to attract the provision, it is enough if injury penetrates into body cavity and then enters that part of body wherein vital organs are located and such injury would be treated as Jaifah.

5. The referred case of Abdul Ghafar (supra) PLD 1999 Lahore 277, is not applicable to the facts of this case, because in the present case both the parties were bound down by the Magistrate under sections 107, 150, Cr.P.C. and they were apprehending breach of peace. The Courts have to draw distinction in cases in which bail is to be granted as a rule and cases which fall under exception. To my mind if the petitioner is not entitled for the grant of bail on the ground that the offence does not fall within the prohibitory clause of section 497 Cr.P.C. and that grant of bail is rule and refusal is an exception because in spite of the fact that the petitioners .were bound down apprehending breach of peace. The petitioner has taken, the law in its own hand by inflicting injury with sharp-edged weapon selecting the vital part of the body of the complainant, therefore the petitioner is not entitled for the grant of bail.

6. For what has been discussed above, here is ho ground to enlarge the petitioner on Nail. Consequently the bail petition is dismissed. V.H.Q./Z-79/L???????????????????????????????????????????????????????????????????????????????????? Bail refused.